226 / 244
GAZETTE
JULY-AUGUST
1979
CONSTRUCTION OF WILL
Power of Appointment under Will
frustrated by conversion of subject
matter. Proceedings were brought by
the Plaintiff as executor.
The Testator devised and bequeathed
his land and chattels to his nephew
(the Plaintiff) in Trust for such child
of his as he should " in his absolute
discretion consider best suited to
possess the lands and pursue the
occupation of farmer" and he gave
his said nephew the right to appoint
by deed or will in favour of such child
when that child attained 25 years;
and until such appointment he gave
his said nephew full powers of
management and control. The
Testator made no disposition in
default of appointment and gave the
residue of every kind to his nephews
and nieces.
During his lifetime the Testator
owned lands in Co. Carlow. After his
death the Land
Commission
commenced
proceedings
for
acquisition and, notwithstanding
objections by fepresentatives of the
Testator, compulsorily acquired the
lands.
The Plaintiff had five children all
under the age of 25 years and no
appointment had been made by the
Plaintiff. Under the circumstances,
the Plaintiff could not carry out the
Trusts of the Will in the manner
directed by the Testator and sought
directions of the Court as to the
proper application of the sale
proceeds.
McWilliam J. commented that had
the property been compulsorily
purchased before the death of the
Testator, the gift would have been
adeemed and the purchase price
would have passed under the
residuary clause
(Galway's
Will
Trusts
[1950] Ch. 1).
He cited cases
(Lawes
v.
Bennet
(1875) 1 Cox 167;
re Carrington
[1932] 1 Ch. 1;
Jones v. Bailey
[ 19101 1 I.R. 110 and
Mlley v. Carty
[1927] I.R. 541) which turned on the
failure of the donee of the power to
appoint the property into which the
subject matter of the power had been
converted and commented that they
seemed to favour the principle of
ademption where specific property
had been converted before the
directions of the t estator creating a
power could be carried into effect.
However, in the present case,
McWilliam J. felt that a simple gift of
this property to one of the Testator's
grand-nephews would hardly have
been adeemed by the compulsory
purchase before the executor had
given his assent to the devise and that
the correct approach was to try to
ascertain the intention of the Testator
and not to endeavour to adapt a rule
of law or construction to fit the facts.
He had little doubt but that the main
consideration in the mind of the
Testator was that the land should be
owned and worked by some one of
his own family and of his own name.
The lands having been sold they
could not be appointed to one of his
grand-nephews and the Testator's
object could not be achieved.
McWilliam J. referred to the case
of Robinson v. Moore
[1962-63] Ir.
Jur. Rep. 29 in which Dixon J.
reviewed the law regarding the effect
of a Will where property is given by
that Will with a power to appoint to
other people but no appointment is
made and there is not provision in the
Will for a default of appointment. In
considering the alleged "rule" that "if
there is a power of appointment
among certain objects, but no gift to
those objects, and no gift over a
default of appointment, the Court
implies a Trust for or a gift to those
objects equally, if the power be not
exercised", Dixon J. concluded that
the correct approach was to enquire
whether there was any clear
indication that the Testator intended
the objects of the power or some of
them to take not only under the
power but also if the donee failed or
neglected to execute the power.
Held
(McWilliam J.) that there
was no such indication and if there
was any indication, it was that the
Testator was more anxious to benefit
the older generation to whom he gave
the residue and that the proceeds of
the sale of the lands pass under the
residuary clause in the Will.
Patrick J. Tuite v. Mary Tuite & Ors.
High Court (per McWilliam J.) — 3
November 1978 — unreported.
SALE OF LAND - SPECIFIC
PERFORMANCE
Letter from Vendor's estate agents to
Vendor confirming terms
of
agreement for sale constitutes a note
or memorandum in writing for the
purposes of Statute of Frauds.
The Plaintiff, who was a director of a
building company, had, prior to the
events which gave rise to the
proceedings, purchased from the
Defendants part of the Defendants'
lands at Monkstown ("the front
lands"). He was anxious to purchase
the remainder of the lands ("the back
lands") and kept in contact with the
Defendants' Estate Agents. At some
time prior to the 7 December 1977
the Plaintiff offered H.W. of the
Defendants' Estate Agents £175,000
for the back lands. The Chairman of
the Board of the Defendant
Company
indicated
to
the
Defendants' property adviser, M.L.,
the terms on which the Defendants
would be prepared to sell and M.L.
kept in contact with H.W. Between 7
and 19 December, 1977, the Plaintiff
had a number of discussions with
H.W. and eventually agreed to
purchase the back lands for
£175,000 on the terms that the date
for the closing would be six months
from the date of contract, that the
deposit payable would be £30,000,
and that the Plaintiff would pay
interest on the balance of the
purchase money at the rate required
by the Defendants.
Following the completion of this
Agreement H.W. wrote to M.L. in the
following terms:—
"Hall School - Lands at Rere
" Fu r t h er to our telephone
conversation this morning I
confirm that we have agreed
terms, subject to contract, for the
sale of these lands to Mr. Paddy
Kelly of Berkeley Homes Ltd.,
who were the purchasers of the
front lands. The principal terms to
be included in the contract for sale
are as follows:—
"Proposed purchaser: Hickey
Beauchamp Kirwan & O'Reilly,
(In Trust).
"Proposed price: £175,000.
"A non-returnable deposit of
£30,000 to be paid on exchange
of contracts, the balance to be
paid not later than 6 months
thereafter with interest at 12%
from the contract date until the
closing date.
"I am sending a copy of this letter
to Mr. Haugh of A. & L.
Goodbody, solicitors for the
Vendors, and perhaps you could
kindly confirm instructions to him
on behalf of the Committee".
Yours sincerely,
H.W.